Chandigarh

StateCommission

CC/66/2016

Amit goyal - Complainant(s)

Versus

DLF India Ltd. - Opp.Party(s)

Meena Bansal

10 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	66 of 2016
Date of Institution	:	17.02.2016
Date of Decision	:	10.06.2016

 

Amit Goyal son of Janak Raj, House No.22, Sector 2, Panchkula.

…… Complainant

V e r s u s

 

1. DLF India Limited, through its Managing Director, having its Registered Office at IE, Jhandewalan Extension, Naaz Cinema Complex, New Delhi-110055.
2. DLF Universal Limited, through Sh.Rakesh Kherwal, its Authorized Signatory, having Branch Office at SCO 190-191-192, Sector  8-C, Chandigarh.

              ....Opposite Parties

               

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

               MR. DEV RAJ, MEMBER.

               MRS. PADMA PANDEY, MEMBER.

 

Argued by:- Ms.Meena Bansal, Advocate for the  complainant.

                  Ms.Ekta Jhanji, Advocate for the opposite parties

                

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT   

              The facts in brief are that allured by rosy pictures and assurance of lavish facilities, shown in the brochure Annexure C-1 and also various salient features projected by representatives of the opposite parties, the complainant  moved an application with them, for purchase of a residential plot, in their project, under the name and style of Hyde Park Estate IF, New Chandigarh, Mullanpur, Punjab. Alongwith the application form, an amount of Rs.12 lacs was paid as earnest money. Thereafter, vide an allotment letter dated 31.03.2011, the complainant was allotted plot no.HPE-R2-F302, measuring 350 square yards @Rs.25,500/- per square yard, in the said project. Total sale price of the unit was fixed at Rs.87,76,911.68Ps., which included Basic Sale Price, External Development Charges, Maintenance Security Charges etc. The complainant opted for down payment plan. It was further stated that, as per demand raised by the opposite parties, from time to time, the complainant kept on making payment towards the said unit. By 24.10.2013, an amount of Rs.81,75,985/-, stood paid by the complainant, towards price of the said unit.

2.        On 31.01.2012, Plot Buyer’s Agreement (Annexure C-6) was executed between the parties. As per Clause 32 of the Agreement, the opposite parties were required to deliver possession of the unit, in question, to the complainant, within a period of 24 months, from the date of execution of that Agreement i.e. on or before 30.01.2014, subject to force majeure circumstances. In order to make payment towards the said unit, the complainant raised housing loan, from the ICICI Bank. It was stated that, despite a fact that the  complainant had paid an amount of Rs.81,75,985/-, i.e. about 90% of the sale consideration, possession of the unit was not even offered to him, by the stipulated date.
3.        It was further averred that the complainant visited the site a number of times but was shocked to see that there was no development. Even basic amenities were not in existence. The complainant made various visits to the office of the opposite parties, to apprise him with regard to the status of the project and also delivery of possession of the unit, but to no avail. When possession of the unit, in question, was not offered to the complainant, by the stipulated date, he sought refund of the amount deposited, alongwith interest and compensation, however, nothing was done by the opposite parties. It was further stated that, on the other hand, despite the fact that there was no development at the site, and also basic amenities were not in existence, the opposite parties, vide letter dated 21.11.2014 (Annexure C-7), raised an illegal demand of Rs.19,98,066.84Ps., under various heads and vide the said letter, the complainant was asked to make payment of the said amount, so as to enable the opposite parties to handover possession of the unit.
4.        It was further stated that on receipt of letter dated 21.11.2014, the complainant again visited the site, but was shocked to see that still there was no development and basic amenities were also not made available. Thus, despite the fact that all basic amenities such as roads, parks, shopping complex, club house, electricity etc. were not available at the site,  the opposite parties offered paper possession of the unit, in question, vide letter dated 21.11.2014. Thereafter, the complainant made various visits to the office of the opposite parties, and expressed his concern, regarding non-development at the site, but no heed was paid to the same. It was averred that after waiting for sufficient time, after the stipulated date, when possession of the unit was not even offered to the complainant, left with no alternative, he had purchased another property, for his residential purpose. 
5.        By stating that the aforesaid acts of  the opposite parties amounted to deficiency in providing service and adoption of unfair trade practice, the instant complaint was filed by the complainant on 17.02.2016 before this Commission, seeking refund of the amount deposited alongwith interest, compensation and litigation expenses.
6.         The opposite parties in their joint written reply pleaded that in the face of arbitration clause contained in the Agreement, dispute if any, was required to be referred to an Arbitrator, as such, the consumer complaint was not maintainable. It was averred that the complainant did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act. It was further pleaded that since the proceedings before the Consumer Foras are summary, in nature, this Commission is not competent to adjudicate this complaint. Sale of plot of land simpliciter does not fall within the scope of the Act.  In other words, it is said that only a Civil Court can adjudicate the dispute, in question. It is admitted that the complainant had purchased the plot, in question, from  the opposite parties. Execution of the Agreement is also admitted. Payment made by the complainant, as mentioned in the complaint is also not disputed. It is also admitted that possession of the unit was to be delivered within 24 months, from the date of execution of the Agreement i.e. latest by 30.01.2014. It is also admitted that possession of the unit was not even offered by the stipulated date. It is stated that possession of the unit was offered to the complainant on 21.11.2014. Reminders in the matter was also sent to the complainant, but he failed to take over possession of the unit, as such, he is liable to pay holding charges, besides other amount, demanded vide letter dated 21.11.2014. It is averred that the complainant was a defaulter in making payment towards the said unit It is further stated that the opposite parties have already completed development of 897 plots and 255 built-up units. It was further stated that other basic amenities are all upto the mark. Out of 326 built-up units, occupation certificate has been received for 255 units (85 plots). The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
7.        In the rejoinder filed, the complainant reiterated all the averments contained in the complaint, and repudiated those, made in the written version of the opposite parties.
8.        The parties led evidence in support of their case, by way of filing their respective affidavits, alongwith which, number of documents were attached. 
9.        The first question that falls for consideration is, as to whether, in the face of existence of an arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by  the opposite parties, in this regard, deserves rejection, in view of the judgments passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016 and Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, Consumer Complaint no.198 of 2015, decided on 04.04.2016, wherein this issue was dealt, in detail, by making reference to various judgments of the Hon’ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986, it was held that even in the face of existence of an arbitration clause in the Agreement, to settle disputes between the parties through Arbitrator, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 andNational Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

10.        In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for  the opposite parties, stands rejected.
11.        The objection taken by the opposite parties, to the effect that the complainant did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It may be stated here that, it has been clearly mentioned by the complainant, in para no.1 of his complaint that the said unit has been purchased by him, for his residence purpose. On the other hand, nothing contrary to this, has been proved by  the opposite parties, by placing on record, any document. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was produced, by the opposite parties, to prove that the complainant owned a number of other residential properties, in the tricity, and, as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the opposite parties, mere bald assertion i.e. simply saying that the complainant did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the opposite parties, in their written reply, therefore, being devoid of merit, is rejected.  
12.        The next question, that falls for consideration, is, as to whether, the present consumer complaint was not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainant hired the services of  the opposite parties, for purchasing the unit, in the manner, referred to above. According to Clause 32 of the Agreement, the opposite parties were required to deliver possession of the unit, in question, to the complainant, within a period of 24 months, from the date of execution of that Agreement i.e. on or before 30.01.2014, subject to force majeure circumstances, alongwith all basic amenities as mentioned in Brochure and the Agreement. Section 2 (1) (o) of the Act, defines service as under:-

 

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

 

From the afore-extracted provision of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held as under:-

“In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant-company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/ amenities, lay-out approvals etc. was a ‘service’ within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted ‘service’ within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all 7 Page 8 advantages and/or disadvantages on “as is where is” basis, as was the position in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. (2009) 4 SCC 660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents”.

Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can also be availed of by him, as he falls within the definition of consumer. In this view of the matter, the objection of the opposite parties in this regard, being devoid of merit, must fail, and the same stands rejected.

13.        The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainant. As stated above, according to Clause 32 of the Agreement, the opposite parties were required to deliver possession of the unit, in question, to the complainant, within a period of 24 months, from the date of execution of that Agreement i.e. on or before 30.01.2014, subject to force majeure circumstances.  Admittedly, in the present case, possession of the unit, in question, was not delivered to the complainant, by the stipulated date. The Hon’ble Supreme Court of India, in Lucknow Development Authority vs M.K. Gupta, 1994 SCC (1) 243, held that if a builder fails to deliver possession of the property by the stipulated period, the delay so caused is denial of service and such deficiencies or omissions tantamount to unfair trade practice. Thus, it could very well be said that the act of non-delivery of possession of the unit, by the stipulated date, in the absence of any force majeure circumstances, is a material deficiency on the part of  the opposite parties.
14.        The next question that falls for consideration, is, as to whether, offer of possession made by the opposite parties, to the complainant, vide letter dated 21.11.2014, in respect of the unit, in question, could be said to be genuine offer or not. The stand taken by the opposite parties, in their written version, that all the development work had been completed at the site and only thereafter, offer of possession in respect of the said unit was made to the complainant, vide letter dated 21.11.2014, cannot be accepted as correct. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed, is on the builder/opposite party. It was so observed by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. Thus, in case, all the development activities, had been undertaken, and completed at the site, by 20.11.2014, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. At the same time, they were also required to produce on record, a copy of the final Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. As such, an adverse inference could very well be drawn against the opposite parties, that they have not obtained the completion certificate, in respect of the project, in question. At the same time, it is very significant to mention here that it is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

              No doubt, the opposite parties while placing on record, some photographs, have tried to prove their stand, regarding development at the site. In the first instance, it may be stated here that most of the photographs placed on record, by the opposite parties, pertain to flats and rest of the photographs are so blurred/faded, that nothing could be ascertained therefrom, so far as the development of project is concerned. It appears that the opposite parties have purposely placed on record, blurred/faded photographs of the project, so that the actual position of development could not be ascertained by this Commission. Thus, in our considered opinion, it could very well be said that the offer made by the opposite parties, vide letter dated 21.11.2014, was nothing but a mere paper possession, which is not sustainable in the eyes of law. The act of the opposite parties, in offering paper possession of the unit, in question, in the absence of development activities as also completion certificate, amounted to deficiency in providing service and also adoption of unfair trade practice.

15.        The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to him vide letter dated 21.11.2014, i.e. after a delay of about eleven months, and that too, in the absence of any force majeure circumstances and also the basic amenities & development. It is well settled law that non-delivery of possession of the property sold by a builder, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not case of the opposite parties that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. No plausible reason has been assigned by the opposite parties, as to why they failed to deliver possession of the unit, by the stipulated date. Delay could only be condoned, under the terms and conditions of the Agreement, if there exists any plausible reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon’ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

16.        In view of the above, it is held that since there was a material violation on the part of  the opposite parties, in not handing over possession of the unit, in question, by the stipulated date, as mentioned in the Agreement, and that too when the offer was made, there was no development at the site, as also basic amenities were not in existence, the complainant was at liberty, not to accept the offer made and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.
17.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount deposited by him. Once it has been held that it was not obligatory upon the complainant to accept offer of possession, after the stipulated date and also the offer already made by the opposite parties, has also been held to be a mere paper offer, as they failed to prove that the development was complete and also that all the basic amenities as promised by them, vide brochure and the Agreement, were in existence at the site, we are of the considered view, that refund of the amount deposited, should be ordered. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The opposite parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is, thus, entitled to get refund of amount deposited by him. In view of above facts of the case,  the opposite parties, are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices, which in our considered view, if granted to the tune of Rs.3 lacs, will be fair, adequate and reasonable.
18.        It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the  complainant. Admittedly, an amount of Rs.81,75,985/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by  the opposite parties, for their own benefit. There is no dispute that for making delayed payments,  the opposite parties were charging heavy rate of interest @15% p.a., as per Clause 53 of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014. In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.81,75,985/-, alongwith interest @15% p.a., from the respective dates of deposits, till realization.
19.        No other point, was urged, by Counsel for the parties.
20.        For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, are jointly and severally, directed as under:-

1. To refund the amount of   Rs.81,75,985/-, to  the   complainant, alongwith interest @15% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.1 lac (as prayed), for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.33,000/- (as prayed), to the complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a. instead of @15%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

21.        However, it is made clear that the banking/financial Institution, from which the complainant has availed loan, for making payment towards the said unit, will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
22.        Certified Copies of this order be sent to the parties, free of charge.
23.        The file be consigned to Record Room, after completion.

Pronounced.

10.06.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rg.